Russell v. Russell: Spousal Support Reduced Due to Husband’s Inability to Pay

Husband and Wife married in 2004 and had two children. The parties separated in 2011, approximately 6 weeks after the younger child’s birth. On August 26, 2011, Husband filed a 1384588_50125940complaint for divorce, alleging irreconcilable differences and inappropriate marital conduct. Wife then filed a counter-complaint for divorce, alleging adultery and inappropriate marital conduct.

At the time of trial, Husband had been working for eight years, full-time at his family’s business. He earned an annual salary of $49,798.00, plus a yearly bonus. In 2011, his bonus was $30,000. Therefore, Husband’s income for the year he filed the divorce was approximately $79,798.

Wife began working at a bank in August 2005, but she left that position in 2008 to stay home after the birth of their first child. She returned to work at the bank when the parties separated. Her annual salary at the time of trial was $35,000. Wife was also working part-time managing an event center, and she was the co-owner of a catering business. She earned $1,500 in the first 9 months of 2012 at the event center, and she took a draw of $532.99 from her catering business. Therefore, her income was significantly lower than her Husband’s income.

Following a trial in September 2012, the trial court dismissed Husband’s complaint for divorce and instead granted Wife a divorce on the grounds of adultery and inappropriate marital conduct. The trial court found that Husband’s annual income was $79,798,and Wife’s annual income was $37,543. The trial court then ordered Husband to pay $1,500 per month to the Wife as transitional alimony for a period of thirty-six months. This was in addition to $1,346 per month in child support.

Husband filed an appeal, challenging the establishment of alimony and the determination of Husband’s income.

When an appellate court reviews issues of spousal and child support, the court considers whether there was sufficient evidence presented to reach the decision, whether the court applied appropriate legal principles, and whether the decision was within the range of acceptable alternatives.

Husband claimed that the trial court erred in awarding spousal support, as the amount was more than he had the ability to pay. He also argued that the expenses claimed by Wife were inflated. The appellate court determined that Husband did not have the ability to pay $1,500 per month and lowered the monthly obligation to $1,000.

Tennessee law recognizes 4 types of alimony: 1) alimony in futuro 2) alimony in solido 3) rehabilitative alimony and 4) transitional alimony. Tennessee law prefers short-term types of spousal support (rehabilitative and transitional) over long-term types (in futuro and in solido). Transitional alimony (the type at issue in this case) is “appropriate when a court finds that rehabilitation is not required but that the economically disadvantaged spouse needs financial assistance in adjusting to the economic consequences of the divorce.” Transitional alimony is intended to assist the disadvantaged spouse with their transition to the status of a single person, helping with his or her adjustment to the economic consequences of establishing and maintaining a single income household.

Transitional alimony is payable for a definite period of time and can only be modified if the parties agree to the modification, the court provides for modification in the divorce decree, or the recipient spouse begins living with a third person.

Trial courts in Tennessee have broad discretion to decide whether spousal support is appropriate and, if so, to determine the nature, amount and duration of the support. The two most important factors considered in this determination are the disadvantaged spouse’s need for support and the obligor spouse’s ability to pay.

Husband did not argue the amount of his 2011 income. Instead, Husband maintains that the $30,000 bonus he received was earmarked to pay a $36,000 loan he took out to pay obligations he obtained as a result of the divorce. Furthermore, Husband proved that his bonuses had been declining over the past few years as a result of a struggling construction market. Wife, however, argued that Husband’s income should be averaged over the past 3 years, rather than simply looking at 2011, which would increase Husband’s income.

Wife claimed that she had a monthly deficit of $2,211.36, establishing her need for spousal support. Testimony at trial indicated that both parties had lived above their means while married, and both had taken steps since the separation to live more frugally. The appellate court did not find that the trial court abused its discretion in determining the level and duration of Wife’s need for support.

However, the appellate court recognized that Husband’s spousal and child support obligations totaled $2,936 per month, leaving Husband with $1,395.63 each month, which is less than half the cost of his monthly expenses. The appellate court found that the alimony award left Husband without resources to pay his basic expenses. The court also recognized that, while a party’s “relative fault is a factor to be considered in determining the nature and amount of an alimony award, alimony ‘is not and never has been intended by our legislature to be punitive.'” Lindsey v. Lindsey, 976 SW2d 175.

The appellate court found that the trial court erred in setting the amount of transitional alimony beyond Husband’s ability to pay and awarded a downward modification.

If you need to modify an alimony obligation, a child support obligation, or if you need to protect yourself in a divorce, contact our office today to schedule your FREE CONSULTATION.

Russell v. Russell
In the Court of Appeals of Tennessee at Nashville

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